[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

June 20



GLOBAL:

A history of unjust executions----Egypt's 1st democratically elected President, 
Mohammed Morsi, was sentenced to death by Egyptian court on Tuesday.



History repeats itself, this is something everyone is aware of. But it seems 
that sometimes we forget and are taken aback when events unfold in an 
unexpected way. Egypt's overthrown President Morsi's death sentence is just a 
new step in this circle

Last week's death sentence for former Egyptian President Mohammed Morsi is an 
example of history repeating itself. But still we were caught unaware. While 
most commentators were aware that it was highly likely a death penalty would be 
handed down, the actual deliverance of it caused outrage and anger in many 
parts of the world. However, the Western world displayed a milder version of 
this outrage. White House spokesman Josh Earnest said that the U.S. "was deeply 
troubled by the politically motivated sentences that have been handed down 
against former President Morsi ..." U.N. Secretary-General Ban Ki-moon said he 
was "deeply concerned" and the EU said this was a worrying development. None of 
these are blasts against the inhumanity and unspeakable horror of an elected 
president being sentenced to death by the courts of his own country.

However, this is nothing new - history repeats itself. In medieval times many 
kings were deposed by their opponents and were summarily executed without even 
the pretense of a trial.

Although history repeats itself, things have changed. Nowadays former leaders 
are put on trial by those that are trying to get rid of them. But the result is 
the same, an execution at the hands of the state that they once ruled.

A history of unjust executions

One such name that is recorded in the annals of history is the Hungarian Imre 
Nagy. In the mid-1950s, Nagy was dismissed from the Council of Ministers by the 
Soviets. During the Hungarian anti-Soviet revolution of 1956, Nagy was made 
chairman of the Council of Ministers by popular demand - popular demand in a 
Communist country, very unusual during these times. He tried to lead his 
country toward a multiparty political system in which there would be free 
elections. In addition, Nagy announced that the country was no longer part of 
the Warsaw Pact and asked for Hungary to be recognized by other nations as a 
neutral power. The Soviets responded to this neutrality by sending in tanks. 
Nagy and some of his supporters sought refuge in the Yugoslavian embassy. As 
Nagy was leaving the embassy he was arrested and charged with treason. Nagy was 
put on trial by the Soviets, sentenced to death and hanged in June 1958. It was 
claimed that Nagy had been executed so that Soviet Premier Nikita Khrushchev 
could give a "lesson to all other leaders in socialist countries," thus putting 
an end to the thaw that had started to spread throughout the Communist world.

Another tragic example of an elected leader being executed is that of Prime 
Minister Patrice Lumumba, who lived from 1925 to 1961. Lumumba was an important 
leader of the independence movement in the Republic of Congo, helping the 
country become liberated from Belgium. Lumumba was the 1st democratically 
elected prime minister in Congo. However, only 12 weeks after Congolese 
independence his government was overthrown by a coup. The chief of staff, 
Joseph-Desire Mobotu, was instrumental in Lumumba's arrest and his subsequent 
treatment. Although the authorities originally said that there would be a 
trial, Lumumba was beaten, tortured and then executed by firing squad. 3 weeks 
later it was announced that he had been killed by villagers.

The announcement of Lumumba's death led to protests in several countries, with 
people marching on Belgian Embassies. Belgium was seen to be implicated in the 
assassination of Lumumba, and later the Belgian commission admitted that the 
Belgian government had wanted Lumumba arrested, that they were not concerned 
with his physical well-being and although aware that his life was in danger, 
did nothing to protect him.

In addition, the CIA was implicated in this event, accused of helping to 
capture Lumumba and of being in touch with the murderers the night Lumumba was 
killed. It is thought that one reason Lumumba was killed was the impending 
inauguration of John F. Kennedy as president. Lumumba was killed just 3 days 
before the new president was sworn in. It is thought that Mobotu feared Kennedy 
would favor the imprisoned Lumumba.

A history of unjust executions

Mobotu took the life of other leaders in Congo, thus securing himself the place 
as ruler and dictator of the country, which he renamed Zaire. Moboto received 
great support from the United States, as he was ostensibly anti-communist, 
although he imposed single-party rule in which all the power was in his hands 
and created his own personality cult.

Salvador Allende, who was trying to introduce socialist reforms in Chile was 
overthrown by the military. After a CIA-backed coup, he was pronounced dead and 
it was claimed that he had committed suicide.

Let's leap to the 1970s and change continents once again. The time is the early 
1970s in Chile. Salvador Allende was the socialist president of the country. He 
was trying to introduce socialist reforms consisting of nationalization and 
collectivization. However, the legislative and judicial branches did not share 
Allende's penchant for socialism, and tension was growing. It was during this 
time, in 1971, when the first "cacerolazos" took place. A cacerolazo is a 
protest in which women bang on pots and pans, in protest of shortages, 
objecting that they have no food to put in their pans. Istanbul witnessed such 
protests by residents of certain areas of Istanbul. The protests here were not 
against shortages. Protests grew until 1973 when the military, with backing 
from the CIA, moved to overthrow Allende.

In response to the military's threats to remove him from office on the basis 
that Allende had committed a number of crimes, including "ruling by decree" and 
taking over the national television channel, Allende responded: "... I solemnly 
reiterate my decision to develop democracy and a state of law to their ultimate 
consequences. ... Congress has made itself a bastion against the 
transformations ... and has done everything it can to perturb the functioning 
of the finances and of the institutions, sterilizing all creative initiatives." 
Allende made a final speech in which he vowed not to resign, however only hours 
later he was pronounced dead and it was claimed that Allende had committed 
suicide.

One example from Africa, one from Europe and one from South America. Later in 
the same decade, an elected leader from the Subcontinent was put on trial and 
executed. Zulfikar Ali Bhutto, who lived from 1928 to 1979, was the 9th prime 
minister of Pakistan and the 4th president. Bhutto was educated in both the 
U.S. and Britain, training as a barrister in London.

Bhutto was a well-educated man who wanted to rebuild Pakistan, to "rebuild 
confidence and rebuild hope for the future." A new constitution was introduced 
in 1973, and Bhutto made the transition from the office of president to that of 
prime minister, an office that had just been given new powers.

Bhutto played a leading role in the atomic bomb program, one that made many 
Western nations uneasy.

In 1977 Bhutto's party won the elections, but the right-wing parties claimed 
that there had been fraud and violence erupted. General Mohammed Zia ul-Haq, 
chief of staff of the army, deposed Bhutto in a coup. Bhutto, the prime 
minister, was tried and executed by the supreme court.

Bhutto is a contentious figure. In fact, it has been claimed that thousands of 
people cheered when he was arrested in 1977. But it is clear that his arrest 
and subsequent execution were neither fair nor transparent. Bhutto was arrested 
for the murder of a political counterpart. But the judge found the evidence to 
be "contradictory and incomplete." Immediately after this, the judge who made 
this ruling was removed from the bench. Three days later Haq arrested Bhutto 
again, but this time under martial law. When demonstrations broke out, Haq 
cancelled the upcoming elections. The twists and turns in this story do not end 
here. During the trial the defense lawyers were often interrupted, and none of 
their objections were put on the record.

Ramsey Clark, the 66th U.S. attorney general, predicted that Bhutto would be 
executed, claiming that the proceedings were a "sham" held in a "kangaroo 
court." In a talk at Stanford University, Clark suggested that the CIA was 
behind the removal of Bhutto from office. Clark said: "I don't believe in 
conspiracy theories in general, but the similarities in the staging of riots in 
Chile and in Pakistan are just too close." He also said: "As Americans we must 
ask ourselves this: Is it possible that a rational military leader ... could 
have overthrown a constitutional government, without at least the tacit 
approval of the United States?"

Clark went on to predict that Bhutto would be executed quickly in order to head 
off a political comeback in upcoming elections. More significantly, Clark 
uttered ominous statements that "Bhutto's execution could set off the single 
most dramatic change in world power alignment since World War II." The Soviet 
Union had always wanted to attain warm water ports as does Russia does today. 
Clark claimed that "the road to the Persian Sea has to be a golden road." The 
road to the Persian Sea for the Soviet Union is through Afghanistan. Clark 
claimed that the U.S. must have given tacit support to the military to 
overthrow a democratically elected government, and moreover, the dictatorship 
in Pakistan "daggers the underbelly of the Soviet Union."

>From a foreign policy point of view, dictatorship that owes allegiance is 
preferable to a democracy, the head of which is determined by the people. Such 
a head of state is not answerable and can be recalcitrant.

Indeed, only 2 years after Bhutto's execution the Soviet Union entered 
Afghanistan and the almost immediate counter attack was the start of the long 
years of war that destroyed the country. Reports make it clear that Haq was 
supported by the CIA in subsequent years and that the CIA ensured he stay in 
power as president. However, Bhutto's legacy lived on in his son, Murtaza, who 
was assassinated, his daughter Benazir, who was also assassinated, and his 
granddaughter, the author Fatima Bhutto who is still alive.

Then of course there is the tragic story of Adnan Menderes, the elected prime 
minister of Turkey who was hanged in 1961 by a military junta. He and the men 
hanged with him were accused of violating the constitution. Despite pleas from 
international leaders like Kennedy and Queen Elizabeth II, Menderes, a 
democratically elected prime minister, was hanged.

If you look at the dates of these tragic events, events that surely can only be 
called crimes, it is possible to feel slightly smug. Of course, these were all 
over 40 years ago, in the 21st century such terrible things should not happen. 
But they do and they are. Do not believe for one minute that what is happening 
to Morsi is any different than the 4 examples above. Someone, somewhere has an 
ax to grind. Morsi was an elected leader. Unlike his predecessors, all elected 
with more than 88 % of the vote - a sure sign of a dictator - and his 
successor, Abdel Fattah el-Sissi, who was elected with 97 % of the vote, Morsi 
attained 52 % of the total vote. And this 52 % is a sign of a healthy 
democracy.

Elected leaders are much harder to control than dictators who have direct or 
indirect support of an interested nation. The lack of an outcry by the Western 
world when Morsi was so summarily deposed, with the Americans shaking their 
heads and saying "tut tut" to what was clearly a coup, and the lack of foreign 
indignation or anger at Morsi's being sentenced to death is nothing new. But 
that does not mean it should not shock us.

It is interesting that in 1998 Ramsey Clark wrote: "The new evil empires, 
terrorism, Islam, barely surviving socialist and would-be socialist states, 
economic competitors, uncooperative leaders of defenseless nations, and most of 
all the masses of impoverished people, overwhelmingly people of color, are the 
inspiration for new campaigns by the U.S. government ... shoot first and ask 
questions later, to exploit, to demonize and destroy." This was written before 
9/11. But everything written in this paragraph echoes what was to come. We were 
warned.

(source: Jane Kandur, Daily Sabah)








IRAN----executions

At Least 5 Prisoners Hanged in Ghezel Hesar Prison



At Least 5 prisoners have been executed in Ghezelhesar Prison.

According to the report of Human Rights Activists News Agency (HRANA), the 
death sentences of at least 5 prisoners with drug related charges who had been 
transferred to solitary confinement, has been performed, on Wednesday June 10.

A member of Reza Kargari's family, one of the executed prisoners, told HRANA's 
reporter, "I saw 5 families who came to collect the bodies, but it could be 
that more families might had come earlier".

He said about the condition of the family of Reza Kargari, "Reza is executed 
for 700gr drugs, which was not even acquired from him. It took seven years to 
issue the sentence. We are not against the punishment, but if there was a 
proper processing, it would not be death sentence. He had 2 9 and 15-year-old 
daughters who have now lost their father. The whole family is in turmoil now. 
We really tried hard, but could find no help".

Besides Reza Kargari, some other prisoners have been executed, too but the 
exact number is not known to HRANA. The names of the prisoners who were 
transferred to solitary confinement is as follows:

Hasan Noormohammadi, Gholamreza Soltani, Ali AFshari, Hossain Alemi, Reza 
Kargari, Reza Mansouri, Mohammad Jannati, Behrooz Karami, Hasan Noormohammadi, 
Reza Noormohammadi (20 years old), Parviz Naderi, Jasem Vaisi, Salar 
Mahmoodzadeh and Mostafa Koohi.

HRANA's sources reported about the execution of some prisoners in Adel Abad 
prison in Shiraz, too.

(source: Human Rights Activists News Agency)








IRAQ----executions

Witness: ISIS publicly executes 25 'spies' in Mosul



The Islamic State group executed 25 people in Mosul on Thursday on charges of 
spying and leaking information to the US-led coalition, according to sources in 
the ISIS-held city who claimed to have observed the killings.

According to the witnesses, those executed were accused of leaking information 
to Peshmerga and Iraqi intelligence services about ISIS military bases that had 
reportedly been bombarded by coalition forces in recent days.

Last week, the coalition carried out intense bombing runs on ISIS bases in 
northern of Iraq.

On Thursday, a convoy consisting of military vehicles equipped with heavy 
artillery was also destroyed by airstrikes.

(source: Rudaw.net)








KENYA:

To hang or not? House team divided over death sentence



Thousands of convicts with a date with the hangman are at the mercy of the 
National Assembly whose members are divided over whether they should face the 
noose or serve life imprisonment.

The Legal Affairs Committee is divided over the matter, contained in a Bill 
sponsored by Oljororok Member of Parliament John Waiganjo. While Waiganjo wants 
life sentence upheld, another group led by Kiharu MP Iringu Kang'ata wants the 
convicts hanged without further delay.

In his Bill, The Penal Code (Amendment) Bill, 2014, Waiganjo wants the 
provisions relating to the imposition of the death penalty upheld. The 
Oljororok MP is also seeking an amendment to the Criminal Procedure Code (CPC) 
to remove provisions that relate to the imposition of the death penalty.

The Bill seeks to repeal the section of the Code which provides for the right 
of a person sentenced to death to appeal. But Kang'ata and a majority of the 
committee members are pushing for the death penalty to be reinstated and the 
more than 1,050 convicts hanged without further delay. Yesterday, Kang'ata told 
People Weekend that his proposal has the support of the majority of the 
committee members.

"These are condemned people whom judges found guilty as charged and they, 
therefore, should suffer the consequences of their deeds," Kang'ata said. He 
says that some offences such as serial murder, rape and defilement are so grave 
that only the death sentence can assuage the loss.

According to Kang'ata, it would be absurd for a person convicted of terrorism 
offence to be committed to a life sentence and continue enjoying tax payer's 
resources.

"An eye for an eye, let convicts suffer the same fate they inflicted on their 
victims," Kang'ata said adding that majority of the MPs were in support of the 
position. Waiganjo, however, argues in his Bill that death punishment is 
immoral, ineffective as a deterrent and has failed to adequately restore 
victims of crimes for which it is prescribed.

"Article 26 of the Constitution guarantees the right to life for all citizens 
and provides that this right may only be qualified by the same Constitution or 
an Act of Parliament," Waiganjo writes.

The 1st-time lawmaker wants Section 24 of the Penal Code (Cap 63) which 
stipulates punishments which may be inflicted by a court amended. He further 
wants section 25 of the Bill repealed. The section reads that, "Where any 
person is sentenced to death, the form of the sentence shall be to the effect 
only that he is to suffer death in the manner authorised by law.

"Sentence of death shall not be pronounced on or recorded against any person 
convicted of an offence if it appears to the court that at the time when the 
offence was committed he was under the age of 18, but in lieu thereof, the 
court shall sentence such person to be detained at the President's pleasure, 
and in so sentenced he shall be liable to be detained in such place and under 
such conditions as the President may direct, and whilst so detained shall be 
deemed to be in legal custody."

"Again, we need to allow mitigation, death penalty should not be final, for 
instance, if a police kills on his line of duty, he can take life imprisonment, 
but grave acts, such as cold murder, should definitely attract death," Kang'ata 
opines.

The convicts had their fates reversed in 2009 when former President Mwai Kibaki 
commuted their death sentences to life imprisonment. Kibaki signalled 
intentions to abolish the death penalty altogether but he first called for a 
study to determine whether Kenya's mandatory death sentence for murder, armed 
robbery or treason actually deters crime.

Kenya is one of the Sub-Saharan countries that have made steps toward reducing 
executions or doing away with them. Others include Uganda, Tanzania, Mali and 
Nigeria. China has the most executions, at least 5,000 in 2008, according to a 
July report by the anti-death-penalty group Hands Off Cain.

China's highest court, which reviews all executions, recently called for the 
death penalty to be used less often. In the US, about 35 people are executed 
per year. By Kenyan law, armed robbery carries a mandatory death sentence - 
whether for bank robbers armed with submachine guns or someone using a stick to 
snatch a chicken.

Even though the death penalty has not been carried out since 1983, the 
population on death row kept expanding. In a landmark judgment, Kenya's Court 
of Appeal sitting in Nairobi on July 30, 2010 declared unconstitutional the 
application of a mandatory death sentence on all prisoners convicted of murder.

In their unanimous judgment, Court of Appeal judges ruled that the automatic 
nature of the death penalty in Kenya for murder violates the right to life and 
amounts to inhuman punishment, as it does not provide the individuals concerned 
with an opportunity to mitigate their death sentences.

As a result, hundreds of prisoners currently on death row in Kenya were given a 
reprieve. The Court of Appeal said that the same reasoning given in the 
judgment would apply to other offences having a mandatory death sentence, such 
as treason and robbery with violence (Section 296/2 Penal Code).

(source: mediamaxnetwork.co.ke)








INDIA:

Executioner-in-Chief----The SC's ever-changing dance with death under HL Dattu 
& other justices



Chief Justice of India (CJI) HL Dattu is not far from matching a new record: 
since he became CJI on 28 September 2014, he has confirmed the death sentences 
of 10 persons in 5 cases.

This year alone, Dattu presided over apex court benches that confirmed 8 death 
sentences in 4 cases confirmed 8 death sentences in 4 cases, including 2 
persons whose appeal he refused in a judgment delivered last month (15 May), 
and 2 on the Friday before that (8 May).

In a Supreme Court tenure that started in 2008, Dattu has confirmed 13 death 
sentences in seven cases with nearly 7 months remaining before he retires, 
according to a tally of such judgments that is with Legally India.

If Dattu continued at the pace he's set in early 2015, he could be on track to 
approach the former Supreme Court judge Justice Arijit Pasayat's record tally 
of 23 death penalty confirmations in 13 cases between 2001 and 2009.

And although Dattu commuted one death sentence to life imprisonment because he 
found the prosecution's evidence too circumstantial to warrant the death 
penalty, in 2 cases he also dismissed 4 prisoners' special leave petitions 
(SLPs) to appeal their sentences to the Supreme Court outright with only a 
cursory hearing (in limine, in legal speak).

For lawyers, academics and activists opposing the state putting anyone to death 
even for the most heinous crimes in the rarest cases, things are looking far 
more bleak now than they did only 12 months ago.

Sathasivam's legacy

"I personally feel sullied every time a person is executed in my name," says 
advocate Dr Yug Mohit Chaudhry about why he is spending so much time fighting 
to save the lives of those sentenced to death. "It's almost certain that the 
person is being executed because of his poverty. You're criminalising poverty 
here because he couldn't defend himself adequately."

Chaudhry has handled hundreds of murder trials and appeals, and around 25 "end 
stage cases of death-row prisoners on the verge of execution", having written 
more mercy petitions than he can remember, he says.

He, along with senior advocates Colin Gonsalves, Ram Jethmalani, Anand Grover 
and R Basant argued for a raft of death row prisoners in a case that would 
prove to be a game-changer in death penalty jurisprudence, wedging open a door 
that no one was sure had even existed until that point.

On 21 January 2014, then Chief Justice of India (CJI) P Sathasivam, heading a 
constitution bench of three with justices Ranjan Gogoi and Shiva Kirti Singh, 
commuted the sentences of 15 death row inmates to life in prison because the 
state had taken too long to deal with their mercy petitions.

"They did not expect at the time that a challenge would be mounted on the basis 
of delay," comments Gonsalves.

The 154-page judgment stated that "when the delay caused in disposing the mercy 
petitions is seen to be unreasonable, unexplained and exorbitant, it is the 
duty of this Court to step in and consider this aspect".

Small mercies

Mercy petitions come after the court appeals against the death sentence have 
run their course. "The prisoner's mercy petition is 1st sent to the (state) 
Governor, and if it is rejected, to the President (of India)," explains 
Chaudhry. "The Governor and the President have no independent powers in this 
area, and they have to act as per the advice of the state and central 
governments respectively. At best, they can return the recommendation by the 
government for reconsideration, or delay signing the rejection letter when they 
do not agree with the recommendation."

"From 1998 we had three consecutive presidents who were against the death 
penalty," he adds about K.R. Narayanan, Abdul Kalam and Pratibha Patil. "For 10 
years there was only 1 rejection (of a mercy petition).

"Pratibha Patil (president from 2007 to 2012) held out. She refused to sign any 
rejections for the bulk of her tenure. Then, under immense pressure, she 
rejected 3 cases, involving 5 prisoners. While doing so, she also granted mercy 
in a large number of cases."

Since then, president Pranab Mukherjee has rejected around 31 mercy petitions, 
recounts Chaudhry. "Mukherjee has basically just become a rubber stamp. He's a 
government man, but he's supposed to exercise his judgment independently. He 
can ask questions and try to persuade the government, as his predecessors have 
done, but he seems to be quite content to sign on the dotted line even though 
it means that he's signing a human being's death warrant."

While apparently straightforward, the mercy petition process often becomes 
delayed by inefficiencies in bureaucracies, which leaves prisoners lingering on 
death row for years - 14 years in 1 case - and sometimes in solitary 
confinement (a form of torture according to many human rights advocates).

Anup Surendranath, director of NLU Delhi's death penalty project, says that 
under Sathasivam's doctrine if there is "undue" delay by the executive in 
rejecting a mercy petition - a time period that can vary from case to case - 
there is no need to prove that the prisoner has suffered because the court will 
"presume suffering".

The new principle of undue delay was re-applied quickly: on 18 February 2014 
the same Sathasivam-headed bench commuted the death penalty of the 3 Rajiv 
Gandhi assassins; on 31 March 2014, Sathasivam with his 2 successor-CJIs RM 
Lodha and HL Dattu, alongside Justice Sudhansu Jyoti Mukhopadhaya, commuted the 
death sentence of Devender Pal Singh Bhullar.

"Unfortunately people began to feel very overconfident that the battle against 
the death penalty was substantially won," comments Gonsalves about the raft of 
commutations in Sathasivam's time. "It was real false bravado really - the 
central issue was untouched. It cured the problem in delay and disposal of 
petition but after that (judgment) no president is going to delay."

"Now the governments are aware that delay is a ground (for commutation)," 
agrees Surendranath and a consequence could be that "governments will just 
dispose of mercy petitions really quickly".

"It was something we had to decide - in trying to save the current bunch of 
people whose mercy petitions have been denied, we may have reduced the chances 
of future persons at the mercy petition stage," he says. "But that is not a 
reason to hold back such a litigation. In some of these cases the delay was 
horrendous. And in quite a few cases they continue to practice solitary 
confinement."

"It's a double edged-sword," adds Gonsalves. "A delay in disposal got you extra 
moments of life but the same thing that got you extra moments of life, that is 
the argument for commutation."

"It brought benefit to a limited number of persons whose delay applications are 
pending but it made it more difficult now for those whose mercy petitions were 
yet to be filed, because for them there would be no delay at all. The chance of 
political manoeuvring, the chance of something unexpected turning up, is gone 
because there is no delay," he laments.

Favourable odds?

The NLU Delhi Death Penalty Litigation Clinic (established in August 2014) and 
now with four full-time lawyers now handles legal representation for death row 
prisoners and is currently involved in the cases of over 35 prisoners sentenced 
to death. Apart from strategising, drafting, and briefing arguing counsel, the 
Clinic ensures detailed interviews with prisoners and regular prison visits to 
update prisoners about the progress in their cases.

According to statistics from the centre, around 385 prisoners are currently 
sentenced to death in India and awaiting either their death or a successful 
appeal. However, only three have actually been executed in the last 15 years: 
Dhananjoy Chatterjee in 2004, Ajmal Kasab in 2012 and Afzal Guru in 2013.

"Of 100 cases where the death sentence is given in trial court, about 5 or 6 
get confirmed by the Supreme Court," explains Surendranath. "Lots of people say 
that (this is evidence that) the system is working: 94 people are not affirmed 
by the appellate courts. But given the delay in our system and the manner in 
which prisons treat prisoners sentenced to death, we are unnecessarily keeping 
94 people on death row for long durations."

The funnel coming from trial courts remains huge and continues to be fed by 
inadequate legal representation for the poorest of defendants.

"With a few honourable exceptions, the legal aid panels are staffed by 
briefless barristers, people who are not good enough to have a private 
practice," says Chaudhry. "Further, the extremely low remuneration (legal aid 
typically provides Rs 500 - 1500 for an entire trial, Rs 2,000 or so for an 
appeal in the high court) and the volumes of papers to read, are actually a 
disincentive to put in any hard work or research.

"Court clerks earn more for each case handled by a chamber."

On top of that trial court judges are not immune to the rhetoric coming from 
the apex and high courts, nor necessarily insulated from a media frenzy and 
public opinion.

Rarities

"There's sort of a fight back by 'hanging judges' who may feel that the 
Sathasivam period brought unncessary relief to those who they believe did not 
deserve it," argues Gonsalves about what he calls a "wrong" and "very narrow 
view". "The Supreme Court has swung so far into the realm of conservatism and 
regression that we've gone backwards many many years, if not decades.

"Now you have a series of death sentences being delivered by the Supreme Court 
with not even an elementary understanding of the 'rarest of the rare'."

The oft-cited 'rarest of rare' criterion was crystallised in a majority 
judgment by a 5-judge Supreme Court constitution bench in the Bachan Singh vs 
State Of Punjab case in 1980 (Justice PN Bhagwati, solely dissenting with the 4 
other judges, held that the death penalty was unconstitutional because there 
weren't enough legislative guidelines and should therefore be struck down).

The 4 judges who wrote the majority judgment in the case did not go as far but 
stated that "judges should never be bloodthirsty".

"A real and abiding concern for the dignity of human life postulates resistance 
to taking a life through law's instrumentality. That ought not to be done save 
in the rarest of rare cases when the alternative option is unquestionably 
foreclosed," they wrote.

The bench also noted that "great weight" should be given to mitigating 
circumstances, even in the most heinous murder cases that would quality for the 
death penalty. However, complain Chaudhry and Gonsalves, a large number of 
courts are nowadays ignorant of such guidelines under which the "state shall by 
evidence prove that the accused" would constitute a "continuing threat to 
society" and can not be "reformed and rehabilitated".

For defence lawyers, the oft-cited 'rarest of rare' test has therefore become a 
codeword for judicial unpredictability.

Chaudhry says, "The fate of death sentence cases, especially in appeal, depends 
overwhelmingly on the subjective beliefs and perspective of the judges deciding 
the case. They decide whether in their opinion a particular case falls into the 
nebulous category of rarest of rare, and whether it deserves the death 
sentence, and there are no objective parameters. Consequently, inconsistency 
and arbitrariness are rife in our death penalty jurisprudence."

Photo by Andy DolmanPhoto by Andy Dolman Butterfly effects

Despite anti-death penalty lawyers feeling that they are faced with a hostile 
CJI and government, small victories and legal strategies continue being carved 
out against the odds.

The Supreme Court has decided 240 death penalty cases since 2000, according to 
data compiled by Chaudhry. Out of those, 119 death sentences were commuted to 
life in prison and in 70 the accused were completely acquitted.

In only 51 was the death sentence upheld by the Supreme Court.

After a death sentence is upheld, and before the mercy petition stage, lawyers 
will usually try to file a review petition where the same Supreme Court judge 
who confirmed the death sentence would sit in chambers in solitude to 
re-consider if any obvious error had been made.

Unsurprisingly, unless the judge had retired and a new judge would do the 
review, judges almost never admit in review that their recent judgment was 
incorrect and should be re-opened. But in a life-and-death matter, argued 
lawyers, such a cursory review process is not sufficient.

On 2 September 2014, after hearing writ petitions brought by 5 death row 
convicts, a 5-judge constitution bench changed the rules, handing down a 
majority verdict written by Justice Rohinton Nariman, saying that review 
petitions challenging death penalties must be heard by a 3-judge bench in open 
court.

Furthermore, they ruled that all those on death row whose review petitions had 
been heard by less than 3 judges, would be entitled to apply for new review 
petitions by a three-judge bench within a month. Justice Chelameswar dissented 
and disagreed with the 4-judge majority and warned that it could spawn an 
"unwarranted 'review baby' boom" of death penalty decisions.

That said, the chances of a successful review petition are usually slim, admit 
Gonsalves and Chaudhry.

However, in an alignment of circumstances that is typical in the unpredictable 
world of death penalty jurisprudence, that judgment ended up saving at least 
one life as it eventually met the Sathasivam delay doctrine in a round-about 
and dramatic way.

At 130am on 12 September, senior counsel Indira Jaising secured a one-week stay 
of the execution for the Nithari killings convict Surinder Koli, after waking 
up CJI Dattu at his home in the middle of the night, only hours before Koli 
faced the noose.

And while the Supreme Court would later dismiss Koli's review, on 29 January 
2015 a challenge was successful before Allahabad high court chief justice DY 
Chandrachud, who held that the State of Uttar Pradesh had applied the wrong 
rules when rejecting Koli's mercy petition.

Chandrachud then commuted Koli's death penalty to life in jail due to an 
"unnecessary and unreasonable" 3 1/2 year delay in having dealt with the mercy 
petition, again relying on the Sathasivam doctrine.

And, as it goes in the law, less than four months later on 27 May 2015, a 
2-judge vacation bench of Supreme Court justices AK Sikri and UU Lalit relied 
on Chandrachud's judgment to squash Dattu's 12th and 13th death sentence 
confirmations that the CJI had handed down only 2 weeks earlier, on 15 May.

The irony is that this time the system had moved too quickly rather than 
causing undue delay: justices Sikri and Lalit held that a sessions judge had 
violated fair procedure by signing the death warrants "in haste", by waiting 
only 6 days after Dattu's confirmation of the sentences.

The fight to the death in the courts is certain to continue.

(source: legallyindia.com)